[Cite as State v. Black, 2020-Ohio-188.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108335
v. :
ARNOLD BLACK, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618138-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Walter H. Edwards, Jr., for appellant.
SEAN C. GALLAGHER, P.J.:
Arnold Black, Jr., appeals his three convictions for rape, which
include a firearm specification, and the aggregate 13-year term of imprisonment that
was consecutively imposed to a 26-year term of imprisonment Black was serving in
an unrelated matter. We affirm.
The parties have not provided a recitation of the facts underlying the
rape convictions. We accept that as a concession that the facts of the criminal
conduct are irrelevant to this appeal. App.R. 16(A)(6).
In the first assignment of error, Black claims his guilty plea was not
made knowingly, intelligently, and voluntarily because the trial court failed to
substantially comply with the requirement to advise Black of the sex offender
classification requirements that are part of the penalty for his offenses.
“When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining
whether a plea was knowing, intelligent, and voluntary within the meaning of
Crim.R. 11 is substantial compliance for nonconstitutional issues and strict
compliance for constitutional issues. State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163
(1977). “Substantial compliance means that under the totality of the circumstances
the defendant subjectively understands the implications of his plea and the rights he
is waiving.” Nero.
In addition, when challenging his guilty plea based on the trial court’s
lack of substantial compliance, a defendant must also show a prejudicial effect —
that the plea would not have been otherwise entered but for the error. State v. Clark,
119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108.
Black cannot demonstrate that the plea would not have been entered
even if the trial court failed to substantially comply with the nonconstitutional
advisements. The trial court discussed the implications of pleading guilty to the rape
charges, including a brief discussion with respect to the sex offender classification
and registration requirements that would be imposed following the conviction. At
that time, Black’s counsel indicated that Black was already subject to the same Tier
III registration requirements from another case and that the current registration
requirements stemming from the guilty plea were inconsequential. According to
Black’s counsel, the new requirements essentially “merged” with the existing
lifetime registration requirements and would not independently affect Black’s
reporting requirements moving forward. As a result, Black cannot demonstrate, let
alone has he argued, that but for the lack of substantial compliance in informing him
of the sex offender registration requirements, he would not have entered the guilty
plea to the three rape charges.
Even if we assumed, for the sake of discussion, that the trial court’s
advisement regarding the registration requirements was somehow deficient, it is
abundantly evident that Black was not prejudiced thereby. Black was already
subjected to the same reporting requirements, which were not expanded by the
newest conviction. It cannot be credibly argued that had Black been advised of the
full extent of the reporting requirements stemming from his newest crimes, he
would have forgone pleading guilty to the three rape charges with the remainder
being nolled, which reduced his sentencing exposure from 144 to 33 years in prison.
The first assignment of error is overruled.
In the second assignment of error, Black claims that the record does
not support the consecutive sentencing finding that Black committed the newest
crimes while awaiting trial or sentencing or under community control or postrelease
control sanctions.
Felony sentences are reviewed under the standard provided in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. A reviewing court may overturn the imposition of consecutive sentences
only if it clearly and convincingly finds that either (1) “the record does not support
the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is
otherwise contrary to law.” R.C. 2953.08. Before a trial court may impose
consecutive sentences, the court must make specific findings mandated by R.C.
2929.14(C)(4) and then incorporate those findings in the sentencing entry. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court
is not required to give a rote recitation of the statutory language. Id. “[A]s long as
the reviewing court can discern that the trial court engaged in the correct analysis
and can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.” Id. at ¶ 29.
R.C. 2929.14(C)(4) authorizes the court to order consecutive service
of multiple sentences if consecutive service (1) is necessary to protect the public from
future crime or to punish the offender; (2) is not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public; and
additionally (3) that (a) the offender committed the offense while awaiting trial or
sentencing, under community control monitoring, or under postrelease control for
a prior offense; (b) at least two of the offenses caused harm so great and unusual
that no single term for any offense adequately reflects the seriousness of the
offender's conduct; or (c) the offender’s history of criminal conduct demonstrates
the necessity of consecutive sentences to protect the public from future crime. State
v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, ¶ 6.
We need not extensively consider Black’s argument that one of the
alternative findings under R.C. 2929.14(C)(4)(a) is not supported by the record. In
this case, the trial court also found that
at least two of the multiple offenses were committed in this case as part
of one or more courses of conduct, and the harm caused by said
multiple offenses was so great or unusual that no single prison term for
any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of defendant’s conduct.
R.C. 2929.14(C)(4)(b). The legislature authorized the trial court to impose
consecutive sentences if only one of three findings under R.C. 2929.14(C)(4)(a)-(c)
is made. State v. Nave, 8th Dist. Cuyahoga No. 107032, 2019-Ohio-348, ¶ 7. Black’s
claim, of the lack of evidence that he was not awaiting trial or under supervision at
the time he committed the current crimes as a basis to demonstrate the
inappropriateness of the consecutive sentences, is without merit. In this situation,
the legislature authorized the imposition of consecutive sentences if any of the
alternative findings is supported by the record under R.C. 2929.14(C)(4)(b) or (c).
Id. Even if we agreed with Black that the record does not clearly and convincingly
support the finding under R.C. 2929.14(C)(4)(a), the trial court’s additional finding
under subdivision (C)(4)(b) satisfied the consecutive sentencing requirements. In
light of the fact that Black has not challenged the factual underpinnings of the
alternative finding the trial court made in this case, we cannot find error in the
imposition of consecutive sentences. App.R. 16(A)(7). The second assignment of
error is overruled.
In the third and final assignment of error, Black claims that the trial
court failed to consider the principles of felony sentencing under R.C. 2929.11 and
the factors under R.C. 2929.12, and as a result, his sentence is contrary to law. Black
is mistaken.
When reviewing felony sentences, appellate courts apply the standard
of review set forth in R.C. 2953.08(G)(2). Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may
vacate and remand a sentence, if the court clearly and convincingly finds that either
the record does not support certain specified findings or the sentence is otherwise
“contrary to law.”
At the sentencing hearing and again in the final entry of conviction,
the trial court expressly considered all that is required by law. Id., see also State v.
Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243, citing State v.
Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 14 (trial court fulfills its
obligation to consider the sentencing factors by expressly indicating such in the
record). There is no error. The record unambiguously demonstrates that the trial
court considered the principles of felony sentencing and the sentencing factors
applicable in Black’s case. State v. Taylor, 8th Dist. Cuyahoga No. 107881, 2019-
Ohio-3367, ¶ 11.
We note, however, that Black does not actually appear to be
challenging the trial court’s consideration of the required factors and principles, but
instead he appears to disagree with the trial court’s weighing of the sentencing
factors. Importantly, the trial court imposed five-year terms on all counts, only two
of which were imposed consecutively and, in addition, imposed the three-year term
on the firearm specification consecutive to the ten-year, base aggregate term.
The entirety of Black’s argument on this point is as follows:
Appellant certainly has a criminal history, but he has also spent the
entirety of his adult life incarcerated. Tr. p. 138. Appellant has
experienced some issues during his incarceration, but he has not
committed any sexual offenses and has only been in three fights over
the course of approximately ten years. Tr. p. 141. All of the offenses in
Appellant’s 2008 case and the current case occurred within a four-
month span. Tr. p. 149. The court noted that had it sentenced Appellant
for all of the cases at one time, it would have imposed a sentence of
approximately twenty-six years total. Id. Prior to this matter, Appellant
was scheduled to be released in 2034. Tr. p. 101. Now, despite the trial
court’s contention that twenty-six years was an appropriate aggregate
sentence for this case and Appellant’s prior case, he will be incarcerated
until 2047.
It appears that Black is challenging the aggregate length of the consecutive sentences
and not the individual sentences imposed on each felony count in this case. Having
already concluded that there is no error in imposing the aggregate 13-year term of
imprisonment in this case, consecutive to the aggregate 26-year term of
imprisonment that Black is already serving in an unrelated case, we need not
address this apparent claim any further.
In addition, the mere fact that Black disagrees with the trial court’s
decision based on its independent consideration of the sentencing factors is not a
basis for this court to reverse the lower-range sentences imposed on each individual
felony. In Taylor, 8th Dist. Cuyahoga No. 107881, 2019-Ohio-3367, this type of
argument was thoroughly addressed and rejected. As the court succinctly framed
the issue,
In an effort to challenge the adequacy of the trial court’s statutory
considerations, [appellant] is merely asking this court to substitute our
judgment for that of the trial court, which, as stated, appellate courts
are not permitted to do. Moreover, by asking this court to view the
seriousness and scope of his conduct in light of the relevant mitigating
factors, [appellant] is encouraging this court to independently weigh
the sentencing factors, which appellate courts are also not permitted to
do.
(Citations omitted.) Id. at ¶ 17. The trial court in this case considered the factors
Black highlights in this appeal. That is all that is required by law. Id. We are unable
to conclude by clear and convincing evidence that the record does not support the
imposition of the five-year terms of imprisonment on each of the first-degree
felonies to which Black pleaded guilty.
The third assignment of error is overruled.
Black’s convictions are affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
SEAN C. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR